21 March 2023 Memorandum of Advice Ivana Santic 40 George St Brisbane Qld 4000 Tel: 07 3893 3227 Katrina 35 Evans St Mount Isa QLD 4825 Dear Katrina, Re: Demonstrating historical possession of various rights for Native Title Application This letter summarises what historical laws and customs must be proven for a successful Native Title claim, and how your group may demonstrate them. Continuity of Traditional Laws and Customs Section 223 of the Native Title Act' requires that Native Title rights and interests are possessed under traditional laws and customs acknowledged and observed by any Native Title holder. The case Yorta Yorta, defines what 'traditional' means in this context and outlines what material or evidence would satisfy s 223.3 For your claim to satisfy this element, your group must prove two main things; 1. That your group formed a society, which exists substantially the same as that which existed at sovereignty, and 2. Your group has continued to observe a system of laws and customs, which have been substantially unaltered from those observed by your ancestors at sovereignty. 1 Native Title Act 1993 (Cth) s 233 (1). 2 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422. 3 Native Title Act 1993 (Cth) s 233 (1).
Society The persons who claim native title are required to prove they are members of a society which have existed from sovereignty to the present time. Classifying your group as a 'society' also requires a collective acknowledgment of the laws and customs under which the native title rights are claimed to be possessed. It must be established that your group passed down these laws and customs from generation to generation, without any break.4 Laws and Customs To prove that rights are possessed under 'traditional' laws and customs, they must exist under a normative system.5 This system is uses terminology such as 'must', 'should', and concepts of right and wrong.6 In order to demonstrate historical possession, your group will need to prove that the rights you are seeking to claim are, and have always existed as part of this normative system, rather than simply patterns of behaviour. In the case Gale v Minister for Land & Water Conservation (NSW),7 the applications were unsuccessful in their Native Title claim because they failed to prove continued traditional laws and customs. In this case, it was said that the effects of colonial history had impacted the Indigenous group's ability to sufficiently sustain rights, even if they currently had attempted a recreation of them. These principles were similarly applied in Risk v Northern Territory of Australia,8 where a combination of circumstances involving the attempted assimilation policies, and an influx of other Aboriginal groups into the claimed area, interrupted the presence of the Larrakia people. It was found that the current Larrakia society did not carry forward the traditional laws and customs prior to sovereignty. Despite these cases, the does offer leniency to some degree. In Yanner v Eaton,9 although the mechanism for hunting and collecting